Appellate Division, First Department
Dec 3, 2020
2020 NY Slip Op 07280
Insurer prevailed
A provider may not bill for independent contractors' services under 11 NYCRR 65-3.11 (a), which limits billing to employees' services. Following a nonjury trial, the insurers obtained a declaration that they owed no benefits for services rendered by the disputed treating professionals. Applying the control factors in Bynog v Cipriani Group, the Appellate Division, First Department, found insufficient control over the work's results and means to establish employment. Trial testimony addressed the principal's inability to monitor work quality, use of staffing services, professionals' own malpractice insurance, and part-time work with freedom to take other jobs. W-2 forms were supplied only because the principal believed insurers required them. The order and judgment was affirmed in the insurers' favor.
Appellate Term, Second Department
Dec 23, 2020
2020 NY Slip Op 51549(U)
Provider prevailed
New York law governed the no-fault claims because the New York assignor and provider gave New York the most significant contacts. The collision occurred in New Jersey, but the assignor resided and received treatment in New York. The vehicle belonged to a Massachusetts corporation insured under a Massachusetts business automobile policy. Applying the contract choice-of-law grouping-of-contacts approach under Auten v Auten, the Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion. The insurer's papers did not establish that New Jersey had more significant contacts, and the accident's location did not establish that New Jersey law controlled.
Appellate Term, Second Department
Dec 23, 2020
2020 NY Slip Op 51548(U)
Insurer prevailed
The insurer's expert supplied a factual basis and medical rationale for finding manipulation under anesthesia medically unnecessary. After a consolidated nonjury trial of two no-fault actions, the Appellate Term, Second Department, affirmed both judgments dismissing the provider's complaints. The expert's trial testimony remained within the peer review report's theory: the treatment should be used rarely, and inconsistent records did not establish that these cases warranted it. Deferring to credibility findings, the appellate court sustained the trial court's decision to credit that testimony over the provider's witness. Any error in excluding questions about a textbook not in evidence was harmless under CPLR 2002 because the provider identified no resulting prejudice.
Appellate Term, Second Department
Dec 18, 2020
2020 NY Slip Op 51520(U)
Insurer prevailed
The provider's failure to prosecute after denial of summary judgment justified tolling no-fault statutory interest. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's motion to toll interest from January 1, 2005 to July 12, 2017. The provider took no meaningful action after its summary judgment motion was denied until it filed a notice of trial. Former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d), permits tolling of interest under Insurance Law § 5106 (a) when an applicant unreasonably delays court proceedings. The insurer's alleged failure to respond to discovery demands, even if true, did not establish that the insurer had unreasonably delayed the action.
Appellate Term, Second Department
Dec 18, 2020
2020 NY Slip Op 51521(U)
Split result
Statutory interest was tolled from November 26, 2005 to April 13, 2018 because the provider took no meaningful action to prosecute. The Appellate Term, Second Department, modified the order, insofar as appealed from, shortening the insurer's tolling period. It relied on the companion appeal decided the same day, A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co., No. 2018-2460 Q C.
Appellate Term, Second Department
Dec 11, 2020
2020 NY Slip Op 51505(U)
Insurer prevailed
An insurer relying on rescission under Pennsylvania law need not establish the elements of a separate fraudulent-procurement defense. The provider challenged summary judgment dismissing its assigned no-fault claims based on retroactive rescission of the automobile policy. Following W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., the Appellate Term, Second Department, distinguished proving fraudulent procurement from establishing that the policy had been rescinded in accordance with Pennsylvania law because of fraudulent procurement. It also rejected the provider's argument that the insurer failed to establish an office practice ensuring mailing of the rescission letter. The order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint was affirmed.
Appellate Term, Second Department
Dec 11, 2020
2020 NY Slip Op 51502(U)
Insurer prevailed
A sua sponte order vacating a no-fault judgment is not appealable as of right. The provider moved under CPLR 5019 (a) to replace simple statutory interest with compound interest on a judgment entered after an unpaid settlement. Civil Court denied recalculation and sua sponte vacated the judgment because of delay in entering it. The Appellate Term, Second Department, dismissed the vacatur appeal under CCA 1702 (a) (2) and declined leave to appeal. It dismissed the recalculation appeal as moot because the judgment had been vacated, leaving the provider without appellate relief. The court nevertheless noted that claims submitted before April 5, 2002 are governed by the former compound-interest regulation, 11 NYCRR 65.15 (h) (1).
Appellate Term, Second Department
Dec 11, 2020
2020 NY Slip Op 51506(U)
Provider prevailed
The insurer failed to establish compliance with South Carolina law permitting retroactive rescission of its automobile policy. The insurer sought summary judgment dismissing the provider's claim for injuries sustained in a New York collision, alleging that the insured assignor procured a South Carolina policy through misrepresentations. The Appellate Term, Second Department, affirmed denial of the insurer's motion. Although South Carolina permits rescission ab initio in certain circumstances, an insurer relying on an out-of-state rescission must prove compliance with that state's law. The motion papers did not establish compliance with South Carolina Code Annotated § 38-75-730 (b). The applicability of South Carolina law was uncontested on appeal.
Appellate Term, Second Department
Dec 11, 2020
2020 NY Slip Op 51509(U)
Insurer prevailed
The provider's law office failure affidavit did not justify its failure to respond to a 90-day demand under CPLR 3216. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's dismissal motion. The provider neither filed a notice of trial nor timely sought vacatur or an extension, requiring a justifiable excuse and a meritorious claim under CPLR 3216 (e). Although CPLR 2005 permits consideration of law office failure, the office manager did not explain what happened to the demand or why it went unanswered. The provider had not challenged service, disputed receipt or shown prejudice. The court did not reach whether the claim was meritorious.
Trial court, Second Department
Dec 29, 2020
2020 NY Slip Op 51561(U)
Provider prevailed
The insurers' declaratory judgment action was dismissed because adequate statutory remedies existed and reimbursement claims were already in litigation. The insurers sought a declaration defeating a provider's assigned no-fault billings based on alleged EUO nonappearances and eligibility concerns. Exercising discretion under CPLR 3001 and Morgenthau v Erlbaum, the Supreme Court, Suffolk County, declined declaratory relief. The insurers could assert fraud and licensing defenses in reimbursement proceedings, bring a separate fraud action, or pursue administrative remedies under Insurance Law §§ 5108 and 5109. The no-fault scheme also permitted suit or arbitration under Insurance Law § 5106 (b). The court dismissed without prejudice to pursuit of other remedies and denied summary judgment as moot.
